SMITH v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO.

No. 42776.

498 P.2d 402 (1972)

Betty Sue SMITH, Administratrix of the Estate of Paul Junior Smith, Deceased, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY and Leon Casey, Appellees.

Supreme Court of Oklahoma.

Rehearing Denied July 5, 1972.


Attorney(s) appearing for the Case

John E. Wheatley, Yukon, Smith, Smith & Cook, Oklahoma City, for appellant.

Porta & Weaver, El Reno, Savage, Gibson, Benefield & Shelton, Oklahoma City, for appellees.


JACKSON, Justice.

We agree with the Appellate Court that this case must be reversed and remanded for new trial. However, we have granted certiorari because we are fearful that the Appellate Court's view of a proper instruction on contributory negligence may be misleading to the trial court. The Appellate Court expressed the view that it is for the jury to determine whether contributory negligence exists, and if the jury finds...

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